Thomas Mitchell: Lawmakers fail to rein in forfeiture abuse, again

In the past three legislative sessions bills have been pushed to rein in the pernicious practice of civil asset forfeiture, which allows law enforcement agencies to seize cash, houses, cars and other property without a criminal conviction and keep the proceeds — a practice dubbed “policing for profit” by the Institute for Justice (IJ).

In 2015 Nevada lawmakers did pass a bill that, as introduced, would have required proof of a criminal conviction or a plea deal before seizure of cash or property. By the time it was sent to the governor, who signed it, the conviction requirement was dropped. The law does say the seized property or money should be returned if charges are dropped or dismissed after a trial, but too often charges are never filed against anyone.

In 2017, as pointed out by Daniel Honchariw of the Nevada Policy Research Institute (NPRI) in an op-ed in the Las Vegas newspaper, another bill that would have required a criminal conviction or plea deal, as well as directing proceeds go to education rather than the law enforcement agency died in the Senate Judiciary Committee where state Sen. Nicole Cannizzaro was vice chair. Cannizzaro is a deputy district attorney in Clark County.

Honchariw noted that Nevada district attorney offices earned more than $250,000 through civil forfeiture in 2016 alone, and the Las Vegas Metropolitan Police Department pulled in $1.9 million. That police department had awarded Cannizzaro a “Commendation and Certificate of Appreciation.”

In the session just ended, still another bill was introduced to curb civil asset forfeiture abuse. It passed the Assembly on a vote of 34-6, but, you guessed it, it died in Cannizzaro’s committee without a vote.

Such a conflict of interest is precisely why the Nevada Constitution clearly states, “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others …”

It is a provision that has been roundly ignored to the detriment of Nevadans.

This past week the Institute for Justice released a comprehensive study showing that civil asset forfeiture programs do little to actually deter crime. “Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture” looks at local crime, drug use and economic data from a variety of federal sources.

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The study finds more forfeiture proceeds do not translate into more crimes solved, despite claims that forfeiture gives law enforcement more resources to fight crime.

It also found that “when local economies suffer, forfeiture activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment — a standard proxy for fiscal stress — is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.”

As IJ points out, Nevada police and prosecutors confiscated $11.8 million worth of property from 2015 to 2018.

One of the chief problems with civil asset forfeiture is the fact the proceedings take place in civil court, where the person whose property is being taken is not entitled to a public defender. An analysis by NPRI found that more than half of all forfeiture cases brought by the Las Vegas police involved property worth less than $1,000, well below the cost of hiring an attorney. The majority of property owners were unable to afford to contest the confiscation in court.

In fact a Humboldt County deputy once taunted a motorist from whom he’d just seized $50,000 in cash by saying, “You can try to get it back but you’re not,” later adding, “You’ll burn it up in attorney fees before we give it back to you.”

Civil asset forfeiture tortures the intent of the Fourth Amendment’s right to be free of unreasonable searches and seizures and the Fifth’s right to due process.

“The Institute for Justice’s new study shows Nevada policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness,” said Lee McGrath, IJ’s senior legislative counsel, in a press release. “This study also confirms what experienced legislators in Nevada have long known — the state’s forfeiture laws encourage the pursuit of revenue over the pursuit of public safety and justice. Next session, the Nevada Legislature should enact comprehensive forfeiture reform and end policing for profit by sending all forfeiture revenue to the School Fund.”

The governor does have the power to call a special session.

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